Public Bill Committee

[Martin Caton in the Chair]
Written evidence to be reported to the House
PF 59 General Social Care Council

Vernon Coaker: Good morning to you, Mr Caton, and the rest of the Committee. Looking around, many Members are as suntanned as I am.
On a point of order, Mr Caton, may I ask for your guidance? The first amendment for consideration this morning—amendment 162—refers to the Detention of Terrorist Suspects (Temporary Extension) Bills. Committee members will know that alongside this Committee, there is pre-legislative scrutiny of those Bills, and the scrutiny Committee is due to report on 9 June. Given the importance of what that Committee may report, can you do anything to ensure that Report of the Protection of Freedoms Bill does not occur until after 9 June, so that we have time to consider the deliberations of the pre-legislative scrutiny Committee before we consider the Bill on Report?

Martin Caton: I am afraid that that request is above my pay grade, but the point has been well made. It is on the record and I am sure that it will be listened to.

Clause 57

Vernon Coaker: I beg to move amendment 162, in clause57,page38,line37,at end add—
‘(3) The 14 days limit may be temporarily extended through the Detention of Terrorist Suspects (Temporary Extension) Bills to 28 days in exceptional circumstances.’.

Martin Caton: With this it will be convenient to discuss amendment 163, in clause57,page38,line37,at end add—
‘(4) A Commission will be established to develop a framework of bail conditions suitable for some suspects after 14 days of pre-charge detention.’.

Vernon Coaker: Given the events of the past few days, let me state categorically at the start that whatever differences of opinion we might have on this part of the Bill and whatever debates I might have with the Minister or other members of the Committee, there is no suggestion that any of us is not united in our determination to fight terrorism, to prevent terrorist attacks and to keep our communities as safe as possible. I say that to the Minister, because it is important for all of us that it is put on the record. We will sometimes disagree about aspects of the debate on the issue, as we shall see on this clause and when we deal with other clauses on stop and search, but it is important to say that every Member of Parliament—now, and in the future as in the past—has always had the protection of their communities and the safety of our country as their first priority.
Schedule 8 to the Terrorism Act 2000 introduced seven days as the pre-charge detention limit. That was amended by the Criminal Justice Act 2003, which raised the period to 14 days, and the Terrorism Act 2006, which raised it to 28 days. The provision has been subject to annual reviews, which occurred in 2007, 2008 and 2009. Since 2007, no individual has been detained for more than 14 days under existing legislation. In June 2010, the counter-terrorism review was announced, and it was expected to report in November. Given that there was some discussion and disagreement about the Bills, the review was delayed and not published until two or three months later than expected.
At the same time as the announcement of the counter-terrorism review, the Home Secretary gave a temporary six-month extension to the 2006 Act, and not the usual year’s extension. That ran out on 25 January 2011, when we reverted to 14 days, albeit with the retention of the order-making power in section 25 of the Act should the Home Secretary wish to return to 28 days. That is the context for my amendment, because I need the Minister to answer several detailed questions, which, as he will know, are also being asked by the pre-legislative scrutiny Committee.
The counter-terrorism review recommended 14 days in primary legislation and the need to scrap the order-making provision, which the Government seemed to accept. However, two draft Bills—the draft Detention of Terrorist Suspects (Temporary Extension) Bills—are currently being subjected to the scrutiny of the pre-legislative Committee, which, to reiterate my point, is due to report on 9 June. We have heard your comment on that, Mr Caton. Will the Minister comment? Does he, too, think that to help the deliberations of the House, Report of the Protection of Freedoms Bill should be delayed until the pre-legislative scrutiny Committee has reported? Such a delay would ensure that all the Bill Committee members and other Members of the House could consider the scrutiny Committee’s recommendations before Report. Those findings may influence the decisions that Members of Parliament and Committee members take about the provisions in the Bill. We cannot consider the Bill without taking into account the draft Detention of Terrorist Suspects (Temporary Extension) Bills that are running alongside it.
Clause 57 introduces a permanent reduction to 14 days of the maximum pre-charge detention period for terrorist suspects, and an order that abolishes the power to extend that period if necessary. That is straightforward, but the Minister needs to inform the Committee what has happened, because the Government have got themselves in a bit of a bind. They have permanently reduced the period to 14 days in the Bill and they have abolished the order-making power in the 2006 Act, yet somewhere along the line they thought, “Oh, goodness, what happens if we need more than 14 days? How do we do this? Do we retain the order-making power? Do we keep the legislation as it is or do we follow some other route?” They have decided that the way forward has to be emergency legislation. They are clearly worried about not having some sort of power to extend the period beyond 14 days, even if it is via emergency legislation. They are clearly concerned about simply saying, “We are going to 14 days; this is a matter of principle. There are no circumstances in which we can ever imagine the limit going beyond 14 days.” They are worried about doing that.
No doubt there are Committee members and members of the Government who think that the limit should be reduced to 14 days; it should be on the face of the Bill, with absolutely no possibility of extension and no possibility whatever of doing anything about it. Such is their concern with civil liberties that they think the maximum should be 14 days and that is it. Clearly, however, that is not the Government’s view; they envisage circumstances in which it may be necessary to go beyond 14 days, hence the draft emergency Bills. It is no wonder that the review was delayed, because from my experience in the Home Office, I can imagine what was going on inside Government to try to come up with an alternative that would be agreed across Government. There was clearly some discussion and debate.
The Government’s route was to come up with draft Bills for the detention of terrorist suspects. It is necessary for the Minister to answer a number of important questions about that approach and to explain it to the Committee and to those who read our deliberations on this important matter. Will he explain why the Government have chosen emergency legislation? What was the evidence for that decision? Why not have an order-making power? What is the difference in practice between the existing legislation, which allows 28 days to lapse without the annual review, and what the Government are currently proposing?
I understand the difference between an order-making power and emergency legislation, as does everyone on the Committee, but what is the actual difference in practice? Will the Minister lay out for the Committee the circumstances in which the temporary Bills would be introduced? The Government are abolishing the powers that go beyond 14 days. We have the emergency legislation, but the Committee needs to know the circumstances in which it would be introduced.
In his evidence to the pre-legislative scrutiny Committee, Lord Macdonald, the former Director of Public Prosecutions, said that such legislation should happen only in a national emergency. Does the Minister agree? If he does, how does he define a national emergency? In what circumstances would the Government wish to introduce emergency legislation? The former Director of Public Prosecutions does not believe that we should introduce such legislation under the draft Bills. He said that a better way would be to use the Civil Contingencies Act 2004.
Will the Minister explain the circumstances in which he would imagine the draft Detention of Terrorist Suspects (Temporary Extension) Bills being introduced? The point of the amendment is to try to get the Minister to explain those really important powers to the Committee. The former Director of Public Prosecutions now favours the use of the Civil Contingencies Act rather than the emergency legislation proposed by the Government. When he was DPP, he actually agreed to 11 people being held for more than 14 days, so clearly something has changed his mind to the view that he holds now, and that is an important point, although of course we are all entitled to change our view.
Would emergency legislation be used only in relation to an individual or does there need to be a group of individuals? Can an emergency or threat to national security be caused by one person or does it have to caused by a group? Such points were raised in the evidence sessions by Lord Macdonald and others. Lord Macdonald’s view is that the Government have reached a position where they believe that they can introduce emergency legislation for one person rather than for—as he originally believed was the intention—a group of people.
At the Joint Committee reviewing the legislation, a number of former Home Secretaries under the previous Government made a really good point, and I wonder what the Minister’s view is. The problem with emergency legislation, or legislation such as the draft Bills, is that at a time of exceptional circumstances or national emergency, we are reacting after something has happened. Is not the whole point of terrorist legislation to intervene to try to prevent terrorist acts from happening in the first place? When the Minister tells us what is meant by a national emergency or exceptional circumstances, will he also explain why we should wait for something that is so bad that it is declared a national emergency? Why wait until then to introduce emergency legislation? Why not try to intervene at an earlier stage to try to prevent something from happening? In other words, can emergency legislation be introduced because it is believed that something might happen, or can it be introduced only when something has happened? When is the appropriate time?

Tom Brake: Does the hon. Gentleman have his own definition of a national emergency? Does he think that it is possible to codify precisely what it is in practice?

Vernon Coaker: I am not sure that this is the best way of proceeding, because it is difficult, as the hon. Gentleman said, to define the national emergency that would act as a trigger for the introduction of the legislation. The hon. Gentleman asks a good question, but the fact that I have to say, “I cannot tell you exactly how to define a national emergency”, shows some of the problems with the Bills. He will know, from the pre-legislative scrutiny, that that is one of the problems with the draft Bills, which virtually every Member of that Committee has identified.
The measures are defined as temporary emergency legislation, brought in for a time-limited period of three months to deal with a specific emergency. As the hon. Gentleman said, the problem is that the circumstances need to be defined. Otherwise, how will anyone know what thresholds or criteria the Government are using to bring such legislation forward? The hon. Gentleman’s question is fair. It is a question for the Minister, which is why I am asking him to define the circumstances for us. The Government must have an idea. Other than the words “exceptional” and “national emergency”, there is a lack of any definable trigger in the legislation that would tell the hon. Gentleman or myself in what circumstances such a Bill would be used.
Those are not the only problems with the emergency Bills. Will the Minister explain exactly how the process would work? Let us imagine we have got over the hurdle of defining a national emergency. If the Government are abolishing the existing order-making powers and we are moving to the temporary Bills, is it practical to extend the legislation in that way? Lord Carlile is highly respected by everyone across the country, the security services, the police and the House. He said that in his experience, although the provision has not been used since 2007, it was often only between 10 and 12 days into the detention that the police or security services decided whether they needed to interview or detain someone beyond 14 days. If that was the case, could emergency legislation be introduced quickly enough for that problem to be overcome?
For example, if somebody is held for 10 days and the police decide that there is a need to hold them beyond that, how would the Government introduce emergency legislation quickly enough to deal with the problem? What if it was a Thursday night, or Christmas eve? Obviously, I am trying to think of when the legislation would cause difficulties, and the Government may say that I am thinking up the most difficult and awkward situations. That is true, but the circumstances would none the less be difficult. A more potent example relates to what would happen if the emergency occurred when Parliament was in recess or dissolved. The Madrid bombings took place when the Spanish Parliament was dissolved.
If the Government want to extend detention beyond 14 days, what would happen when, as Lord Carlile said, the person had already been held for 10 or 12 days? Those are real, practical difficulties. Will the measures be implemented quickly enough to cope with a real threat? For example, after the Omagh bombing, it took three weeks for Parliament to be recalled. Is the Minister certain that the practical problems that will arise as a result of the Bill can be overcome, so that the nation’s safety is not compromised? It is not that the Government wish to compromise that safety, but practical problems may arise.
Another issue was raised by nearly everyone in the pre-legislative scrutiny Committee. What will the Home Secretary be able to say to Parliament about why the emergency legislation is needed? I defer to the legal people present, who will know the legal arguments better than I do. The Government have said that the legislation could relate to an individual. How can the Home Secretary go to Parliament and say, “Individual X is such a threat to national security that we must pass the emergency legislation”, without prejudicing a future trial? I do not know. Perhaps the Home Secretary will just say, “Such is the national threat that the country is facing that we need emergency legislation.”
Members of Parliament have debated the issue up hill and down dale over the past few years, with entrenched and principled views held on both sides of the argument. As I said in the beginning, I understand that people have deeply held views about the issue. Does the Minister believe that he can go to Parliament and say, “We need to increase the pre-charge detention period from 14 to 28 days because there is a national emergency”? Lord Macdonald said that MPs will be disciplined and will not want to know more than that because they will trust the Home Secretary. Irrespective of whether we are talking about the current Home Secretary or previous ones, of course everyone trusts the Home Secretary. However, I do not think that Members of this House or the House of Lords will find the Home Secretary’s words alone sufficient to accept the emergency legislation. I think they will want a bit more detail, and I do not know how the Government can provide that. All the people who gave evidence at the pre-legislative scrutiny Committee said that there is a serious legal issue about what can be said in Parliament under privilege that would not prejudice a future trial, such that a judge said, “I am not sure that a fair trial can take place under such circumstances”, and threw the case out.
The Minister will correct me if I am wrong, but my understanding is that the Home Secretary, on the advice of the police or the security services, will go to Parliament to apply for the emergency legislation. Am I right in saying that a police officer has to agree with the Home Secretary to apply for emergency legislation? If so, what would the rank of the police officer need to be, both in the Met and in forces outside the Met? I do not know the answer, and I wonder whether the Minister could help us.
Much more importantly, although this is not in the Bill, does the Minister agree that it would be helpful if not only the Home Secretary and—I am not sure about this—a senior police officer, but the Director of Public Prosecutions, were involved in certifying the application? Therefore, when the Home Secretary goes to the House of Commons, she can say not only that she believes an extension of pre-charge detention is right, but that the DPP has said that it is appropriate. Does the Minister have a view on that? Does he think it could be helpful?
At the moment, extending the pre-charge detention period from 14 to 28 days is a judicial decision. There is no role for the legislature—for Parliament. At 14 days, Parliament is given the general power, but the decision to go from 14 to 28 days or any portion of that rests with a High Court judge. Does the Minister understand that there is concern and can he explain the Government’s thinking about that?
On numerous occasions, the House has said that involvement with the judiciary is essential if we are to maintain people’s confidence in the legislation. A proper balance must be struck between civil liberty and the security of our nation, and there must be compliance with European and our own human rights legislation, so the role of the judiciary is fundamental. Can the Minister say what the Government’s thinking is about introducing a role for Parliament in that process? Is it right that the legislature now has a role, or would it be better to retain the current system where the judiciary alone make the decision? Can the Minister imagine a situation such as the following example? Parliament agrees that such is the national emergency facing the country, the Home Secretary of the day comes to Parliament, with the full support of the Government, and says that it is fundamental that the Detention of Terrorist Suspects (Temporary Extension) Bills are passed. The application is made on the specifics of the individual case, not the generality of whether detention should be 14 or 28 days. Suppose that Parliament agrees; that decision must go before a High Court judge for agreement. Can the Committee imagine the process? The Home Secretary, the guardian of our country’s security, goes to Parliament on an individual threat that is seen as so serious by Parliament that the application is agreed to, and then the High Court judge says, “I do not agree”. [Interruption.] The Minister says there is separation of powers, which is exactly what I might have said in his position. I understand that point, but with deference to him, all I am saying is that when we legislate, it is important for us to understand the consequences of the legislation we are making. I realise the Minister knows that. The situation I described raises a particularly difficult point that was made in the pre-legislative scrutiny Committee.

James Brokenshire: The existing law relates to 14 days, yet if we follow the hon. Gentleman’s analogy, he would not seek to intercede on decisions made by the Crown Prosecution Service and the courts on whether to utilise the full period of 14 days. I do not think he is saying that therefore the 28-day period should automatically be used in those circumstances either.

Vernon Coaker: No, I am not saying that. I am saying that there is a real difference when Parliament is legislating for a general power that can go beyond 14 days, so that we have a 28-day provision but whether that is used is a matter for a High Court judge. There is a difference between having a general power on the statute book, and the police believing, along with prosecutors—as the Minister said—that going beyond 14 days is necessary and they apply to a High Court judge. That is totally different from a situation in which the Home Secretary first goes to Parliament and says, “Such is the seriousness of the threat we face that we need the emergency legislation.”
The emergency legislation would be brought in because Parliament was persuaded by the Home Secretary that the threat to the national security of our country was such that it was essential. That interim step is an important one. It would not be a generality; we would be dealing with an individual, specific case where Parliament believed that there was a threat to national security, and in that specific case a High Court judge said, “I do not agree.” That may be just a point of difference between the Minister and me, but I think there is a real problem, and the judiciary, the legislature and Parliament will see it as a problem. Having Parliament as an intermediary is where the Minister and I differ. I see a potential problem in what the Minister outlined.

James Brokenshire: The hon. Gentleman may be coming to this in due course, but could he explain to the Committee how he has reconciled the points that he has just made with the points raised by the previous Government in relation to their draft Bill on 42 days?

Vernon Coaker: As the Minister knows, the 42 days provision was defeated because Parliament did not agree with the Government. Parliament believed that the Government had gone too far and had not got it right. I am not sure Parliament will believe that this Government have got the measure right under their proposals. I will not constantly repeat the point, but Parliament being involved in the decision to extend from 14 to 28 days and then a High Court judge reviewing it is different from a general power whereby the police apply to a High Court judge and there is purely a judicial decision.

James Brokenshire: I am sorry to press the hon. Gentleman, but he will be aware that the previous Government laid a draft 42-day Bill in the Library, which was in many ways similar to the draft legislation that we have tabled. How has he reconciled his position now, as contrasted with the position then?

Vernon Coaker: In the end, the Government of the day set out what they think is the best thing to do, and then Parliament scrutinises it and makes a decision. Parliament’s decision then was that the Government had got it wrong on 42 days. My own view is that the Government will find it problematic. They will need checks and balances and safeguards to get Parliament’s agreement, as I have already pointed out. The Government, Parliament and the judiciary will be in a very difficult position.
Other countries do not seem to have a problem with the number of days. Different jurisdictions have different models of justice. Many countries make use of the investigatory function of the magistrate; people can be held; holding charges are used and so on. In other countries, intercept as evidence can be used, as can post-charge questioning. Will the Minister update us on the Government’s view of intercept as evidence and post-charge questioning? Some people say that if we went down that route, we would actually solve many of the problems that the Government are seeking to solve with the draft Bills. I am not clear what the Government think about that.

Rehman Chishti: The hon. Gentleman talked about the different legal systems in different countries, for example the inquisitorial system in France and Switzerland and the adversarial system in the UK. Is he advocating that we should move to an inquisitorial system from the adversarial system we currently have?

Vernon Coaker: No, I am not advocating that. I am saying that other jurisdictions overcome in different ways some of the issues that have been debated not only across the Chamber, but within different parties. Certainly, one of the things that has been said is that if intercept evidence could be used and were there to be an allowance for post-charge questioning—rather than the shutters coming down as soon as a charge is made—it would help the judicial process of this country.
The previous Government considered that for a considerable period. There have been inquiries on the issue and the current Government are also considering what to do. It is an important part of our scrutiny in this Committee to ask where the Government have got to on that issue, how it informs this debate and whether there is anything we should know about it. Different countries have different traditions and ways of doing things. That is right and proper. Alongside any review of the measure, the issue is so serious that we should ask questions about how we can make improvements and what differences can be made to how we do things, to overcome some of the difficulties.
That brings me to another point that some people have raised. I want to test the Government’s thinking. The Minister will know that Lord Carlile’s preferred option is the status quo, but notwithstanding that, the Joint Committee on Human Rights and Lord Carlile have said that if there is to be change, we should move to some sort of counter-terrorism bail when 14 days is reached and an individual or group of individuals are still regarded as a threat. That raises a lot of other issues, not least how we could be sure that an individual did not continue to be a threat without imposing such draconian restraints or constraints that they would be virtually under 24-hour house arrest with security all around. Having said that, a number of people involved in counter-terrorism have suggested counter-terrorism bail as an alternative to the draft Bills. Will the Minister outline why the Government have rejected some sort of bail for people who might still be considered a threat to the security of the nation after the 14 days have passed?
Will the Minister explain the Government’s thinking on process? What will happen if the pre-legislative scrutiny Committee—a cross-party body with Members from this House and the other place—says, “The measure won’t work, despite the Government’s best intentions and their desire to find an alternative. They need to think again.” I am interested to know what the Government would do in that case. Will they say, “Well, we have looked at it and listened carefully to what the pre-legislative scrutiny Committee said. We take on board their fine opinions, but actually we’re going to ignore them”? Alternatively, if the Committee said, “Good point”, what would the Minister’s thinking be?
There is a series of questions for the Minister to answer. Why introduce emergency legislation? Why not follow other routes? In what circumstances would there be an application for an extension from 14 days? What is meant by “exceptional circumstances”? Why is there no sunset clause in the draft Bills? Why is there no role for the Director of Public Prosecutions in certifying the Home Secretary’s application to Parliament? How much will Parliament be told? How will Parliament receive the information necessary to make a decision about whether emergency legislation is needed, and how can that be done without prejudicing a trial? Is the Minister confident that the correct balance has been struck between protecting the civil liberties of detained individuals and the wider civil liberties of us all? Is parliamentary involvement in the process appropriate given that it deals with particular situations rather than general safeguards, with the courts deciding on individual applications?
I have tried to ask those questions in a calm and reasonable way. To be fair to the Minister and the Government, the matter is difficult; I, too, wrestled with it in government. It is always a worry that something will happen to make people say, “If you had done this, you would have prevented that from happening.” The Government are worried about that, too. Part of the coalition wants to go back to 14 days—full stop. But the Government are—rightly—worried about what would happen if they did that and something then happened because of the individual who had been released.
These are important questions for the Minister. I am sure that his answers will be read carefully, not only by the pre-legislative scrutiny Committee, but by people outside who, like all of us, want our country to maintain its tradition of civil liberties and its respect for them, but also want to know that our communities and our country are as safe as possible.

James Brokenshire: Good morning to you, Mr Caton, and to the Committee, as we consider these important aspects of the Bill.
I welcome the approach taken by the hon. Member for Gedling in the amendments. I agree that this is a significant part of the Bill, and that the House stands united in combating terrorism and those who would prey on the interests of the country and of our constituents, many of whom have sadly been caught up in horrific incidents in the past. It is important, therefore, for everyone to remain focused on the continuing threats from terrorism—to remain vigilant and to report suspicious activity to the police. It is in that context that we debate the matter. The Government’s overriding desire and focus is to deliver public protection from those who would seek to harm us and harm our country, as they have in the past.
At the outset, I pay tribute to the outstanding work of our police and prosecutors in investigating and prosecuting terrorists. To take one example, in February this year, the airline computer expert, Rajib Karim, was convicted of a series of terrorism offences. Even in those circumstances, which involved some of the most sophisticated computer encryption arrangements that the police have encountered in a terrorism case, he was charged, prosecuted and convicted. Interestingly, he was charged in fewer than 14 days.
On the initial point made by the hon. Member for Gedling about the timing of Report, you said that that was beyond your pay grade, Mr Caton, and making that determination is probably beyond mine. As the hon. Member for Gedling knows, the Committee will run until 17 May, so it is too early to consider the date of Report, but I am sure there will be discussions through the usual channels. We have certainly heard him clearly make his point about the interrelationship of the Joint Committee’s consideration of the draft Bills and the timing of our consideration of this part of the Bill on Report.
Essentially, the hon. Gentleman’s amendments seek to provide for a temporary extension of the maximum period of detention up to 28 days in exceptional circumstances, and to establish a commission to devise a framework of bail conditions for terrorist suspects to be imposed after the maximum period of pre-charge detention has elapsed. We have already committed ourselves to provide for a contingency mechanism in the form of draft emergency legislation—we have already talked about that and I will address the hon. Gentleman’s comments—so amendment 162 is unnecessary.
Our approach to the Bill—there may be a difference between us on this—is that our objective is clear: 14 not 28 days should be the norm for the pre-charge detention of terrorist suspects. For us, that would be an exceptional measure, which means precisely that. The amendment may run contrary to that position, since it seeks to establish, potentially, the exception as the new norm. Fundamentally, the clause is about setting out what the norm should be. We regard the norm as 14 days, which is why we have dealt with the matter as we have. The draft Bills, which are being considered separately, relate to exceptional circumstances that may arise.
I will first address the hon. Gentleman’s last point, on bail, because that is a distinct issue compared with the more general points that he raised about timing and the draft Bills. He will be aware that we have considered the issue of bail for terrorist suspects as part of our review of counter-terrorism and security powers. The review concluded that conditional bail would be inappropriate for suspects who are considered a significant risk to the public, given that the nature and extent of their involvement in terrorism would not have been fully investigated. I think the hon. Gentleman made that point; he recognised that specific challenge when he moved his amendment.
It is worth emphasising to the Committee that the previous Government took the same approach. Interestingly, in the last Session of the last Parliament, the 17th report of the Joint Committee on Human Rights on “Counter-Terrorism Policy and Human Rights” highlighted the bail issue. In their evidence, the previous Government said that they had
“accepted the operational advice of ACPO that bail should not be available in relation to terrorism offences because of the risk to public safety that might be involved.”
In reflecting on that, we are seeking to adopt the same approach.
Our review of counter-terrorism powers concluded that providing for some form of bail for terrorist suspects for the 14 to 28-day period does not, given that it is so rarely needed, justify creating a regime that continues to impose conditions on an individual who should be either charged or released. That conclusion was endorsed by Lord Macdonald, who, as the Committee will know, provided independent oversight of the review. In his report published alongside the review, he said:
“The Review is also right to reject the option of a further 14 days of strict bail being made available to the police. This new restriction would not have been justified by any evidence gathered by the Review, and it would have been widely regarded as an unwarranted form of control order. It is unnecessary.”
We intend to ensure that the detention of terrorist suspects strikes the right balance between protecting the public and respecting individual liberties. However, as hon. Members will have gathered from my comments, we are not persuaded that bail is the appropriate way forward, and Lord Macdonald reached a similar conclusion.
On the more general issue of 14 days and the utilisation of 28 days, it is worth highlighting to the Committee what Lord Macdonald said, as I think the hon. Member for Gedling may have suggested something otherwise inadvertently. In his comments on pre-charge detention, Lord Macdonald said:
“I agree with the Review’s conclusion that the risk of an exceptional event, requiring a temporary return to 28 days, is best catered for by having emergency legislation ready for placing before Parliament in that eventuality. This is the option most strongly supported by the evidence gathered by the Review.”
The hon. Gentleman may have suggested that Lord Macdonald was giving it a slightly different emphasis, but that is clearly what he said in his report responding to the counter-terrorism review conducted by the Government.
As I have said to the hon. Gentleman, the essence of our approach is that 28 days should be the absolute exception and 14 days should be the norm. Therefore, retaining 28 days would in some ways be looking backwards. It would suggest that the provision of 28 days is readily available, and that that would become the norm. Therefore, we have been clear that 14 days is the norm. However, in exceptional circumstances, the provision of 28 days is available, but only through the passing of emergency legislation. Laying draft legislation, which is being considered by the Joint Committee, will assist in speeding that through. That is the responsible way to proceed.

Vernon Coaker: Notwithstanding the Minister’s point, does he accept that because the provision for 28 days will be on the statute book, that therefore becomes the norm? No one has been held for more than 14 days since 2007.

James Brokenshire: I absolutely accept that, and I am glad that the hon. Gentleman has drawn that to the Committee’s attention. Any extension beyond 14 days has not been utilised since 2007, and therefore that is, in many ways, part and parcel of the proposals under clause 58, which will omit the relevant sections of the Terrorism Act 2000, underlining that that is the case.
The hon. Gentleman also tried to second-guess what an emergency is, the reasons why the Government are seeking to introducing draft legislation and whether it is the right way to do things. I return to the point that I made when I intervened on him. The draft legislation is there should the Government believe it to be necessary to introduce the extension. The whole point of the draft legislation is that it is available should there be an emergency, when we can table it before this House and the other place. Those are the words that the hon. Gentleman used when he discussed the draft 42-day Bill that the previous Government sought to keep on the side in readiness. The basic structure of the draft legislation that is currently being considered by the Joint Committee takes a similar framework. It is interesting that the hon. Member for Gedling may be saying that the approach is fundamentally wrong, because that was the approach that he sought to support and adopt as recently as November 2008—perhaps there has been a substantial move away from that. He is right, however, to ask questions and to highlight some of the issues around the introduction of legislation. I shall come on to discuss some of the points that he has highlighted.
It would not be sensible or helpful to speculate and try to second-guess every eventuality in every circumstance in which such draft legislation might be necessary. In general, the measure will be used only in truly exceptional circumstances—when a threat is so significant and a plot, or expected plot, is so complex that going beyond 14 days is considered necessary. I have already given the hon. Gentleman an example of a very complex case that people were absolutely capable of dealing with in the 14-day detention period.
It is also important to emphasise that Parliament is not being given the power to extend to 28 days for a particular individual. One of the points that the hon. Gentleman has highlighted is the separation of powers. Parliament is being given the power to allow the CPS to ask a High Court judge whether detention may be extended beyond 14 days.
In the event of a large-scale terrorist plot, it is likely that there will already be a significant amount of media and public interest, and comment, so parliamentary debates on the subject are unlikely to risk prejudicing any criminal trial in such circumstances. There is existing parliamentary guidance on sub judice issues, and Parliament is well used to considering sensitive issues without endangering national security or possible future trials. For example, Parliament regularly considers the proscription of terrorist groups or the renewal of control order legislation without undermining such trials. Furthermore, it will be able to scrutinise the principles of whether it considers it appropriate to move up to 28 days in the light of arrests without discussing any matters that might prejudice a criminal prosecution. For example, Parliament can scrutinise whether a terrorist suspect’s welfare will be properly protected if the detention period is extended. We can discuss practical scenarios such as the recall of Parliament and various other significant issues. In the past, Parliament has been recalled, statements have been made, and questions have been answered and responded to without prejudicing trials in such eventualities.

Vernon Coaker: Can the Minister confirm what I think he said, or whether I have misheard or misunderstood him? Did he say that the emergency legislation cannot be used for one individual, but only for groups of individuals?

James Brokenshire: In essence, there are three scenarios in which the draft legislation might be used. Again, I am not seeking to second-guess, because we envisage that situation arising in truly exceptional circumstances. First, it could arise because of a threat level or particular intelligence. In other words, before any incident has occurred, Parliament might believe that the heightened status of circumstances is so significant that it is justified in utilising the draft legislation. The second scenario is before arrests, during an investigation that is so complicated and significant that 14 days is not considered sufficient. The final scenario is during an investigation, but after arrests. On the basis of evidence considered by the review, all those scenarios are extremely improbable but cannot be ruled out. I hope that explanation assists the hon. Gentleman.

Vernon Coaker: If I have understood the Minister correctly, his answer is no, it cannot be used for one individual. Unless I misheard him, he did not speak of arrest but arrests, so will he confirm whether the emergency legislation could be used for an individual or does it have to be for a group of individuals?

James Brokenshire: It is ultimately for Parliament to decide when emergency legislation is passed. It will be for Parliament to decide whether the CPS and the courts have this power through the emergency legislation made available. I am trying to assist the hon. Gentleman in relation to the circumstances that may arise. Only in an absolutely exceptional situation would we anticipate the draft legislation being utilised. It is difficult to say definitively that it would be used in these circumstances but not in those, simply because of the truly exceptional nature of events that would trigger Parliament debating such a situation in the first place. I have given the hon. Gentleman the various scenarios that we consider likely, but I would not wish to second-guess the circumstances or rule them in or out.
We will look in detail at the report that the Joint Committee is undertaking on the draft legislation. The hon. Gentleman tempts me to second-guess not only the circumstances in which the draft legislation will operate but the outcome of the Joint Committee’s report. As tempting as that might be, I will not be drawn down that route. Clearly, we will consider carefully the Committee’s report and its recommendations.
On what happens in extremis and if Parliament is not sitting, the answer is that Parliament can be recalled. It is worth drawing the Committee’s attention to the timing of the recall. For example, following the 9/11 attacks, Parliament was recalled within two days of the notice of recall by the Speaker. In October 2001, following terrorist attacks in the US, Parliament was recalled within one day of the date of the notice issued by the Speaker. Even in a situation such as the sad death of Her Majesty the Queen Mother, Parliament was recalled within three days. Perhaps the hon. Gentleman will always seek to give examples that may be unhelpful or push the envelope in some way, but it is important to note that Parliament has been responsive when there have been significant terrorist incidents, and it is worth putting that on the record.
On potential prejudice, there were parliamentary debates after 7/7, 21/7 and the London and Glasgow bombings in 2007, and the subsequent trials were prejudiced as a consequence of those debates. There are means of addressing the points that the hon. Gentleman highlighted, and Parliament does behave well and recognises the context of its debates.
The hon. Gentleman raised specific points about post-charge questioning and the use of intercept as evidence. Provisions for post-charge questioning of terrorist suspects were included in the Counter-Terrorism Act 2008. The previous Government did not implement the necessary changes to the police codes of practice—the PACE codes—so the provisions have not yet been commenced. The review recommends that they be commenced to provide the police and prosecutors with an additional investigative route, and the Government will consult on the associated changes to the PACE codes shortly.
On the use of intercept material as evidence, the Government are committed to seek a practical way to allow intercept as evidence in court. The Home Secretary informed the House on 26 January that the advisory group of Privy Counsellors was being reappointed to consider the issue. The intention is for the group to provide a report to Parliament in the summer. The Government are focused on that, and we will take it forward. There will be further reports to Parliament in due course.
The hon. Gentleman asked whether there is a sunset provision. The draft emergency legislation will limit the period of extension, from 14 days to 28 days, to a maximum of three months. How the draft legislation has been framed is clear to Parliament, regarding the extent to which the authorisation can be granted, and its duration. Given my previous comments on exceptions and norms, it is right and proper that that should be time-limited and does not become the norm thereafter. It has been acknowledged that Parliament will be taking those decisions, and I hope that that is helpful to the hon. Gentleman, if there has been any confusion as to what the situation will be.
Regarding how we get to that stage, the hon. Gentleman was probing around the question of what steps the Home Secretary will take to introduce legislation. Neither the Bill nor the draft legislation specifies that, for example, the police must request the Government to introduce the draft 28-day legislation, albeit that the police at a senior level would almost certainly be involved, and so will the CPS and the DPP. Ultimately, the decision to introduce will be one for the Home Secretary, and as to whether it is passed, for Parliament, and if the Bill is enacted, for individual cases to be determined by the CPS and the High Court judge. There is a clear escalation.

Vernon Coaker: Did the Minister just say, “If the legislation is introduced for individual cases”? That answers my earlier point—that the legislation may be introduced for individuals rather than groups of individuals.

James Brokenshire: It is clearly possible to do that within the scope of the legislation. The safeguard is there. The CPS and the High Court judge are able to determine whether the legislation is appropriate based on the evidence.
I have sought to address the hon. Gentleman’s comments as fairly as I am able to, and I do not want to predetermine or fetter the scrutiny that is rightly being applied to the draft legislation by the Joint Committee with my comments. We will reflect carefully on the response and recommendations made by that Committee, but in light of my comments, I hope that the hon. Gentleman will withdraw his amendment.

Vernon Coaker: I thank the Minister for his reply. I do not intend to press either of the amendments to a vote. They are intended for clarification, but we may have to come back on one or two specific issues on Report. Certainly, amendment 163 is intended to probe the Government’s thinking on terrorist bail, given that the proposal has some support, albeit not across the board, from some people.
I say again—especially so that the Government Whip can pass this on to those who make the decisions—that it is absolutely essential that the Bill is not reported to Parliament before 9 June. I do not want to say that it is an outrage, because that is emotively over the top, but it would make it extremely difficult for Parliament properly to scrutinise the Bill and to decide about the way forward should the report of the pre-legislative scrutiny Committee on the draft Bills be published after Report in the House of Commons. I know that the Government Whip will have heard that important point.
The Minister did as good a job as he could—he always does a pretty reasonable job—although in one or two cases he floated round the answer without actually answering. After several questions, we in the end heard that the provision can apply to an individual. That will be of real interest outside Parliament, because we have had a discussion about whether the Government believe that it can be used for an individual or only for a group. The Minister has clearly said today in Committee that it can be used for an individual, which is a big step forward. It will clarify matters for those who read our proceedings and for the pre-legislative Committee that we now have certainty that there can be a national emergency or an exceptional circumstance in relation to one individual rather than groups, which is extremely helpful.
The Minister was not able to define “exceptional”, other than to say that it applies to a situation that is exceptional. That answers the question in so far as it is true, but it does not answer it for those of us who are trying to understand what the criteria would be for that. Frankly, the Minister cannot define it. He confirmed that it is the decision of the Home Secretary, acting of course on advice, to come to Parliament to say that a situation is exceptional. Again, apart from saying that Members of Parliament can be expected to act properly, the Minister was unable to reassure us about how far any discussion might take place—on whether legislation was necessary and whether Parliament should grant its approval—Parliament, rather than simply taking the matter on trust, would be given sufficient information to make that judgment without prejudicing a future trial. Those with legal expertise will know better than I do, but that might become even more difficult should the exceptional legislation apply to an individual rather than a group.
Another interesting question that the Government will need to answer at some point is: does the Home Secretary, in coming to Parliament to say that a set of circumstances is exceptional, have to state whether that relates to one individual or to a group? That is one for us to discuss later. The Minister has cited examples of when Parliament was recalled in the requisite amount of time, but practical problems might arise. The Minister says that they will not, but I am saying that it is possible—indeed, the pre-legislative scrutiny Committee also believes that it is possible—that we could be in a situation where it is clear that there are exceptional circumstances or there is a need for the extension of these powers, and the practical difficulties make it difficult for those powers to be given in time.
I have one other point, which the Minister may want to intervene on. How does it work when Parliament decides that an extension from 14 to 28 days is necessary, given that it has to be agreed by a High Court judge? I should have asked that earlier. The Minister may not have the answer at his fingertips. Does the decision go straight from Parliament to a High Court judge to be agreed, or does it take another day or two? If the Minister cannot answer that immediately, maybe he will be able to explain later how that would happen.
There are a lot of unanswered questions, which we will continue to look at in this Committee and to which we will return on Report. Many others will want to know the answers to those questions. They are important questions. I say that in case it is a helpful comment that the Minister wants to use. I will know in a minute.

James Brokenshire: All I will say to the hon. Gentleman is that the process is the normal one. The CPS sets out the case to the judge at the 14-day point.

Vernon Coaker: That was a helpful answer. I am not sure I totally understand it, but there we go. With those remarks, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 57 ordered to stand part of the Bill.

Clause 58

Vernon Coaker: I beg to move amendment 164, in clause58,page39,line3,at end add—
‘(2) An inquiry shall be established to investigate the effectiveness of the National Policing Improvement Agency’s guidance for stop and search in relation to terrorism.’.
I shall speak briefly on the amendment because I intend to make some broader comments in the clause stand part debate. I do not know whether that helps the Minister, but I want to help the Committee progress. I also do not want to get into a position where I am continually repeating myself, or the Minister is continually repeating himself. The amendment is probing; I do not intend to press it to a vote.
As the Committee knows, most powers to stop and search require reasonable suspicion. Section 43 of the Terrorism Act 2000 requires reasonable suspicion. The debate, as we know, has often been on section 44, where a senior officer can designate an area and someone can be stopped and searched in that area if they are suspected of terrorism, without reasonable suspicion.
It is an irrefutable fact that there was a considerable rise in the number of stop and searches under section 44. The figures tell us that the number tripled to reach some 210,000 in 2008-09. Most of those were in the Metropolitan police area, where the number rose 266%, compared with a 35% rise in police forces outside of London.
What I am interested in, though, is this: the Minister will know that there was concern in the previous Government at that time—I know, because I was a member of it—on the increased use of section 44. The National Policing Improvement Agency was asked to produce guidance. As a consequence of that guidance, there was a huge reduction in the number of section 44 stop and searches. There was a 54% reduction in the figures for 2009-10. We will come on to the more general points in the clause stand part debate.
Can the Minister explain the difference between what the Government are proposing and what the NPIA guidance states, apart from having to put it into legislation? The NPIA guidance said that it must be stressed that the powers are exceptional. It noted that the geographical area in which the power can be used must be clearly defined. It also said that the police must ensure that the Home Secretary is given up-to-date, detailed justification for the application to use section 44 and that a proper community impact study must be done alongside that.
Given that the NPIA guidance has clearly made a difference and that there has been a huge reduction, and given that much of the NPIA guidance is now contained in what the Government propose, in that it deals with geography and exceptionality and tries to deal with disproportionality, will the Minister say whether he thinks the guidance was a success? Were some of the worries and concerns starting to be addressed? Why have the Government taken the approach that they have in the Bill?
I have a lot of other comments, but I will deal with them in the stand part debate, if that is in order and meets with your approval, Mr Caton.

James Brokenshire: Obviously, the amendment would set up another inquiry to investigate the effectiveness of the NPIA’s guidance on terrorism stop-and-search powers. The Government of course support the need to consider the effectiveness of guidance relating to terrorism stop-and-search powers and, more fundamentally, the powers themselves. I suppose that such consideration is the ultimate point behind all this and behind the more general points that the hon. Gentleman will no doubt seek to raise in the clause stand part debate, although I, too, will hold my fire about the nature of, and the thought processes behind, the changes that have been made, which were obviously considered in the counter-terrorism review.
The review provided the evidential basis for the Bill’s counter-terrorism provisions, including the repeal of the old section 44 stop-and-search powers and their replacement with something more focused, more effective and more proportionate. Ultimately, this is about reassuring the public. As the hon. Gentleman alluded to, there has been significant disquiet over the utilisation of the old section 44 power. The most effective way forward is to look at that power and to ensure that the power on the face of statute is more reasonable, more proportionate and more focused. That is therefore the approach that we have sought to take. A code can seek only to interpret or apply legislation and cannot change legislation in its own right. There is therefore an important distinction between the law and the guidance and other documentation that sits alongside it and relates to how it is applied and utilised.
As the hon. Gentleman will be aware, we envisage there being a statutory code, and we will come to the relevant provisions later. The hon. Gentleman may wish to comment on the code that was issued alongside the remedial order. He will have points about that, and we will no doubt come to them in the stand part debate on this clause or on other clauses in this part of the Bill. However, it is important that there is a robust statutory code, and the code will be subject to consultation with stakeholders across the security and law enforcement community, with the public and with other interested parties. The code will also be subject to the affirmative resolution procedure, so it will have to be debated and approved by both Houses. That is an important distinction as regards the old NPIA guidance, and perhaps some of the points that the hon. Gentleman is seeking to probe in calling for a commission will be addressed by consideration of the statutory codes that are envisaged and contemplated by virtue of the provisions in the Bill.
For those reasons—I note that this is probing amendment—I hope that the hon. Gentleman will feel minded to withdraw the amendment.

Vernon Coaker: I will withdraw the amendment in due course. I am pleased that the hon. Member for Oxford West and Abingdon has returned, because she will realise that she has had a dramatic impact on my amendment; instead of an independent inquiry, we have gone to a commission. Throughout the weekend, I researched the cost of independent inquiries, and found out that it is cheaper to have a commission. I have been suitably reprimanded, and will call for commissions instead of independent inquiries.
Notwithstanding that, my point was that the power in section 44—searching without reasonable suspicion—is important, and it must be used proportionately, sensibly and in compliance with human rights. There was concern about the big increase in the use of section 44 and its application. The point that I was seeking to put on the record was the significant reduction consequent to the introduction of the NPIA guidance, which—I take the Minister’s point about the code and the current legislation—included much of what is in the statutory code that he is seeking to introduce. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed,That the clause stand part of the Bill.

Vernon Coaker: This is a significant clause, and this is a significant stand part debate. I apologise to the Committee, because a lot is going on that informs our discussions. What has happened with stop and search during the past 10 months has been nothing short of a shambles.
The clause repeals existing legislation on stop-and-search powers, and the Government sought to do so without a clue about what would replace it. The Gillan judgment said that stop and search had been used disproportionately and breached human rights—that was prior to the National Policing Improvement Agency guidance—but disproportionality in stop and search had been rejected by the Home Affairs Committee in 2005 when the Prime Minister was a member.
There is no doubt that the Government needed to respond to the Gillan judgment, and in a statement to the House on 8 July 2010 the Home Secretary announced interim guidance on stop and search pending conclusion of the Government’s review of counter-terrorism legislation. The Home Secretary sent out that guidance via the Association of Chief Police Officers, and published it on the website. It said that authorisation of the use of section 44 would be changed—the Home Secretary was trying to comply with the judgment as she saw it—and that officers would no longer be able to use section 44 powers to search without reasonable suspicion, but must use section 43 powers, which require reasonable suspicion. The guidance allowed the powers to be used with regard to vehicles, but not to people. The Home Office would confirm authorisations, because use of section 44 has to be authorised, and the power could be used only when there was reasonable suspicion. That was a big change sent out to the police. Police forces were no longer able to stop and search individuals without reasonable suspicion.
That change was announced and introduced in July 2010. That was the Government’s position. They did not wait for the counter-terrorism review. They did not wait to take advice. They just made the announcement and sent out the guidance. Then the problems started. The Government’s counter-terrorism review, which the Home Secretary and the Government should have waited for before changing the guidance, said that there was an urgent need—not a need, but an urgent need—for a counter-terrorism stop-and-search power that could be used without reasonable suspicion. The Home Secretary, in pre-empting the counter-terrorism review, had taken the decision, but her own review said, “For goodness’ sake, there is an urgent need for the police to have a power to search without reasonable suspicion.” I would like the Minister to comment on the urgent need identified in the counter-terrorism review. Why did the Home Secretary pre-empt that?
The Joint Committee on Human Rights is now calling for evidence on this matter and the use of the remedial order. I will read to the Committee what the JCHR says, because either the JCHR has got this wrong or it is a very serious point. It states:
“The Government also says that the experience of the police since the suspension of the current powers in July last year has indicated that there is a clear operational gap in responding to specific threat scenarios which cannot be met by other, existing powers.”
That is the JCHR, a Select Committee, saying that the Government of this country have taken a decision to leave the police without the necessary powers to counter specific threat scenarios. The counter-terrorism review told us that the Government had sought to abolish section 44 without knowing what to do and that there was an urgent need to replace it, and now the call for evidence by the JCHR is telling us the same thing.
We are discussing clause 58 and other provisions in the Bill to replace section 44, but we are doing so without clarity about why or how the Government have arrived at this situation. The JCHR also says in its call for evidence that because of the urgent need for the gap to be filled, the provisions need to be implemented immediately. So what do we get? In July, the Government suspend the power to stop and search without reasonable suspicion. The CT review says that there is a gap that urgently needs to be filled. The JCHR says that the Government have now recognised it as well. The Government are told by the JCHR and their own CT review that there is a gap. Panic sets in, and the Government bring forward a remedial order to plug the gap, pending the passage of the Protection of Freedoms Bill. The Government say, “Well, we’re going to need some legislation,” and they bring it forward in this Bill and introduce the remedial order.
On 18 March, a remedial order was passed by the House. It gave the police the power to stop and search without reasonable suspicion, albeit with certain caveats that the previous regime did not have; I accept that. However, between July 2010 and March 2011 the police of this country were left without the power to stop and search without reasonable suspicion, in a way that was said to be inappropriate by both the counter-terrorism review and now the JCHR review. According to the call for evidence by the JCHR, the Government have admitted that there has been a gap.
Was it satisfactory for the Government of the day, in their desire to rush through a change to stop-and-search procedures, to introduce something that just a few months later, their own review says has left an operational gap? I am absolutely amazed and astonished that the Government came forward with a proposal to omit section 44 and change the whole stop-and-search practice without a clear idea of a replacement, and then found that the replacement that they had put in place—which was to have no replacement—had left an operational gap.
Clause 58 will omit section 44, and in a later clause, which really relates to this clause, we will reintroduce a replacement for it, which the Government, because of the situation that they found themselves in, introduced on 18 March. I will tell the Committee what happened. Discussions would have gone on. The CT review would have been looked at. The Government would have recognised that there was a gap—the police would have been telling them there was a gap. They would have been worried about all sorts of things, and the Government would have said, “Goodness me. What are we going to do about it?” If something had happened when the Government had that gap, which their own review, the police and others have told them about, and they left the police of this country without the powers needed to tackle terrorism, what on earth would have happened? There would have been panic, and a remedial order.
It is a shambles, and I say that in sadness. I do not blame this individual Minister for it, but in the desire to be seen to do something on the matter, the Government took a decision that left the police with an operational gap, as defined by their own review. That is a serious matter, and I look forward to the Minister’s reply.

Tom Brake: Does the hon. Gentleman agree that it was not the Government’s desire to be seen to do something about section 44, but that the Government were required to do something about it because of the disproportionate nature of those powers?

Vernon Coaker: The powers were not found to be disproportionate by the Home Affairs Committee in 2005. The European Court of Human Rights looked at the situation that predated the guidance changes in 2008. It looked into the way in which stop and search was used at an earlier time, rather than as it was being used in 2008.
The Home Secretary took the decision in July 2010 to respond to the ECHR judgment by saying that the police could not search without reasonable suspicion. Her own review, plus the Government, have now admitted that that left an operational gap. All I am saying is that if the Government wish to comply with the judgment, they should do so in a way that does not leave an operational gap. The Government have clearly found a way of doing so. I am saying that such is the importance of the issue that that should have been found at the time. If the Government had responded by saying, “We accept what the ECHR is doing. We will continue with the current legislation under the existing guidance, which has already seen a significant drop in the use of those powers, while we look at ways in which we can more effectively comply with the judgment,” that would have been fine. That is what the Government should have done, rather than leave themselves with an operational gap for nine months, which they have had to plug with a remedial order.
I shall be interested to hear what the Minister has to say in response to those comments.

James Brokenshire: Perhaps it will not surprise the Committee and the hon. Gentleman that I entirely reject his characterisation of the Government’s approach. He is trying to cling to a false premise. The nub of what he has said is: “Well, actually, it was all fine, because we issued some new guidance, so basically the European Court of Human Rights got it wrong.” Yet the judgment was not about operational practice. It was not about how the powers were being used. The judgment in the Gillan and Quinton case found that the legislation was in breach of article 8: not the use of the legislation but the legislation—the Act itself. It is because the previous Government sought to take a broad view on liberty and so on that we are having to address their mistakes.
Interestingly, even in the previous debate, the hon. Gentleman seemed to be suggesting that it was just fine and dandy that we should be searching some 45,000 people a year, which is the most recent full year’s figure that we have for the use of the powers. We continue to regard that as disproportionate and not an effective use of the police’s counter-terrorism powers, and it affects the public’s confidence in the use of those powers. That is why we have the legislation before us.
The hon. Gentleman says that the Government have been irresponsible and that the focus of public protection has not been at the forefront of our approach. Again, I absolutely reject that. As I said in my comments in the earlier debate, I underline that the protection of the public is the Government’s fundamental driver. We take our approach and our responsibilities seriously in response to what is, sadly, the continuing threat from terrorism that we all face.
We were left in a situation where we had to deal with the mistakes and problems of the previous Government and their failure to reflect and respond appropriately to the issues. That is why the Home Secretary introduced her remedial order. In March, she was advised that the police needed to be able to utilise stop-and-search powers not on the basis of suspicion, on the basis of the assessments of threats at the time. The introduction of the remedial order was therefore right and proper. There has been no confusion about the fact that the powers have been carefully reviewed as part of the wider review of counter-terrorism issues and that they are being implemented through the Bill, which we are debating in Committee. I make no apology for deciding to use the remedial order as an interim measure, given the operational and legal requirements that were highlighted earlier this year. I do not accept the hon. Gentleman’s characterisation. I appreciate his political points and the way in which he sought to raise these matters in an earlier format during the passage of the Bill.
We believe that the proposals in clause 59 and thereafter provide a proportionate mechanism for reassuring and protecting the public in the fight against terrorism and giving the police a proportionate focus and reasonable power, the utilisation of which will command public confidence. Therefore, while it is open to the hon. Gentleman to make whatever points he may wish, I reject his characterisation and reaffirm the Government’s commitment to protecting the citizens of this country.

Question put and agreed to.

Clause 58 accordingly ordered to stand part of the Bill.

Clause 59

Question proposed, That the clause stand part of the Bill.

Vernon Coaker: The clause deals with section 43 of the Terrorism Act and with replacement powers to stop and search persons and vehicles where there is reasonable suspicion.
I have a couple of questions for the Minister. Will he explain why he thinks the omission of the provision dealing with the requirement for searches to be carried out by a person of the same sex is appropriate? One could talk about practical grounds, and I understand that, but would it not be better if there was an option? In certain circumstances, particularly in some communities, this might be a particularly sensitive issue.
The implication of the provisions seems to be that there is a blanket exemption, or is the Minister saying that it is for the officer to determine things on the basis of the circumstances in which he seeks to carry out the stop and search? That prompts the question whether somebody can request that a stop and search be carried out by somebody of the same sex. If that is the case, would the police officer be obliged to accept that request?
This is quite an important issue. We can dance on the head of a pin when it comes to some of the other stuff about stop and search, but this point is quite important, and it needs careful answering. The Minister will say that it will be covered in guidance, but people read the proceedings of Bill Committees, which are used to determine the appropriate way of acting, and the Minister needs to answer some quite serious points.
Can the Minister also clarify—I should know the answer, but I am not sure I do, to be honest—whether stops and searches have to be carried out by an officer in uniform? I think the answer is yes, but will the Minister clarify that in case I have missed something. [Interruption.] Actually, I think I have just found the answer, but notwithstanding that, will the Minister clarify the position for us? As I said, I think the answer is yes.
Can the Minister also explain to us the extension of the power to searching a vehicle? It used to be possible to use the section 43 power only in respect of an individual. The new section 43 power can now be used in respect of not only an individual, but a vehicle. Can the Minister therefore clarify subsection (5), which relates to the searching of vehicles? It refers to the captains and pilots of aircraft, hovercraft and vessels. People sometimes think that we are having fun in Committee by being pedantic, but we are legislating. Does subsection (5) mean that somebody who wanted to search a pilot or the captain of a ship could hold the plane or the ship up? Does it mean that they could search the whole plane? What practical processes are involved in searching vehicles?
Frankly, the public would say, “Do you mean they could not search vehicles before?” If officers stop someone under section 43 because they think they are a terrorist—with reasonable suspicion they stop and search—people would think it pretty stupid if they could not search the vehicle. The clause includes a plane, a boat and a hovercraft. The hovercraft is interesting. Presumably, the clause covers people trying to flee the country. The Minister should explain the Government’s thinking on why a vehicle is now included and how we have arrived at this situation with respect to drivers.
Will the Minister confirm that the provision also includes uniformed officers of the Civil Nuclear constabulary and the British Transport police? I know that it does, but it would be helpful for those who read our proceedings to see that the provision is in the Bill. Will the Minister also confirm that the provision is UK-wide, because terrorism applies to the whole of the United Kingdom? I know the answer, because someone asked me about it the other day. I said that was the case but that I would get it confirmed in Committee. I hope those questions are helpful.

James Brokenshire: The answer to the hon. Gentleman’s specific questions is yes, yes and yes on the availability of the powers to all police forces, including the nuclear inspectorate. Yes, the officer will be in uniform, and yes, the provisions have a UK-wide application. I hope that is helpful to him in connection with those specific issues and the questions that have been raised with him.
Section 43 of the Terrorism Act 2000 currently allows the police to stop and search individuals if the police officer reasonably suspects that the individual is a terrorist. The counter-terrorism powers review recommended that the “reasonable suspicion” power should be extended so that it covered vehicles and individuals rather than just people. The provisions in clause 59 therefore give effect to that by creating a new stop-and-search power in respect of vehicles by inserting new section 43A in the 2000 Act. The new section provides the police with the power to stop and search a vehicle, including its driver, any passengers and anything in or on the vehicle, if a constable reasonably suspects that the vehicle is being used for the purposes of terrorism. Anything discovered during a search, which the police officer reasonably suspects may be evidence of terrorism activity, may be seized and retained.
Clause 59 also extends the existing section 43 so that if a vehicle is stopped as a result of stopping a person, the vehicle can also be searched. This means that police are able to stop and search a vehicle whether the reasonable suspicion is attached to a person in the vehicle or because of the vehicle itself; for example, if it matches the description of a suspicious vehicle, or is being driven in a way that gives rise to suspicion. The provisions give clarity for the police and ensure that section 43 is more likely to be used for a terrorism-related stop and search.
In order for the provision to be a viable tool, we consider that there may be circumstances when it is not feasible to wait for an officer of the same sex to arrive on the scene, so that should not be a legal requirement. The clause therefore removes the requirement for same sex searches, although the statutory code of practice will make it clear that same sex searches should be conducted where possible. It is also important to emphasise that searches under sections 43, 43A or 43B are not intimate searches. At most, the police can ask the person to remove their shoes, hat, gloves, jacket or outer coat. Moreover, the change will bring the search powers in the Terrorism Act 2000 into line with those under the Police and Criminal Evidence Act 1984, which have been in place since 1985, where there is no similar requirement for such searches to be undertaken by a person of the same sex. The provisions in the Police and Criminal Evidence Act have not caused any difficulties, and I would not, therefore, anticipate any problems as a result of this change. Much of it will be dealt with by virtue of the statutory code of practice, as PACE already has in relation to the utilisation of the power.

Vernon Coaker: That is helpful. Where are we with stop and search in relation to headdresses? Supposing a Muslim woman or someone wearing a shawl or a turban was stopped, what would happen? Is requiring somebody to remove a turban for searching allowable under the measure? If so, is it regarded as intimate? I know that there has been quite a bit of debate about that.

James Brokenshire: I am happy to give clarity to the hon. Gentleman. He will be aware of section 60AA of the Anti-Terrorism, Crime and Security Act 2001, which relates to the ability to require the removal of certain face or head coverings, and how the police have sought to utilise that. I am happy to write to the Committee to confirm and clarify the utilisation of the powers.

Vernon Coaker: It would be extremely helpful if the Minister will write to us. I have raised the issue a few times, and I understand there has been a postcard campaign about the searching of Sikhs at airports and so on. I am not saying that that is anything to do with the measure, but it would be helpful to the Committee for the Government to lay out their thinking on such issues.

James Brokenshire: It is certainly a sensitive issue, as the hon. Gentleman appreciates, and it is something that the Home Secretary is examining and considering further as a consequence of public order incidents, rather than terrorist incidents. I would not want to conflate the two, because the hon. Gentleman will be well aware of the sensitivities of conflating legislation and using it in other ways. There is a clear distinction between the use of public order powers and the use of counter-terrorism powers. He makes a fair point about the utilisation of counter-terrorism powers. If it will be of assistance, I am happy to take this away and to see what further clarity can be provided.
Obviously, the issues of reasonable suspicion apply to the provisions. I want to address the hon. Gentleman’s point about the distinction and why we are bringing in provisions in clause 59 that distinguish vehicles and individuals. As I think I have explained, a distinction applies. If, for example, the police are searching for a particular individual within a vehicle, they can obviously stop the vehicle and conduct searches. It is worth highlighting, however, that that is one of several measures that exist. From his previous role, the hon. Gentleman will be aware of various powers such as those for the protection of the border and similar provisions. The clause needs to be viewed as part and parcel of the various measures available to the police in conducting their duties and ensuring that appropriate safeguards are provided when protecting the public.

Question put and agreed to.

Clause 59accordingly ordered to stand part of the Bill.

Clause 60

James Brokenshire: I beg to move amendment 109, in clause60,page40,line6,leave out from beginning to end of line and insert
‘Before section 48 of the Terrorism Act 2000 (and the italic cross-heading before it)’.

Martin Caton: With this it will be convenient to discuss Government amendments 110 to 120.

James Brokenshire: I will not detain the Committee at great length on this group of amendments. They are largely technical and consequential, and they provide clarity about some of the numbering in connection with the introduction of the existing rules that now apply, pursuant to the remedial order. They ensure that there is clarity between the numbering of the remedial order and the numbering in the Bill.
I am sure that hon. Members will want to make other, more substantive points about the clause, even if the numbering is as per the amendments. However, the amendments are of a technical and drafting nature, and are consequential on the making of the remedial order.

Amendment 109 agreed to.

Amendments made: 110, in clause60,page40,line7,at end insert—
“‘Powers to stop and search in specified locations’.”
Amendment 111, in clause60,page40,line8,leave out ‘“43B’ and insert ‘47A’.—(James Brokenshire.)

Question proposed,That the clause, as amended, stand part of the Bill.

Vernon Coaker: That was a crucial amendment: changing 43B to 47A was one of those dynamic changes, but we missed it, so I apologise to my hon. Friends on the Opposition side. We should have spoken to it at great length and pressed it to a Division. Tucked away in here—I point this out only to show that I read all the proposals—is Government amendment 119, which repeals the remedial order that the Government brought in. We will not, however, return to the debate in which, uncharacteristically, the Minister got a bit shirty, and so did I. We are now back in normal territory.
Clause 60 brings replacement powers to stop and search, and it refers to specific areas. I think that we need more detail from the Minister about this matter, and it is not only me who requires it. People sometimes think that we stand up and say these things, and that we are alone in doing it. However, I say to those hon. Members who have not served on Committees before, “Watch as it goes down the tracks and see what gets changed. Watch and see the issues that arise, when people think that the hon. Member for Gedling is speaking on his own, that nobody listens to him and that he hasn’t a clue what he’s talking about.” Then, in about three months’ time, people realise that the legislation has suddenly been changed to adapt to what was said. That is how I found things as a Minister, and that is what will happen with some aspects of the Bill.
Clause 60 and the whole remedial order business, which Government amendment 119 refers to, is not only subject to my scrutiny: the Joint Committee on Human Rights is interested in how on earth the Government got themselves into the position that they did, and what they are now doing about replacing what was in the provision. There are a number of questions that arise on clause 60, and I will try again with what clause 59(5) meant, because the same point is repeated in this clause. I guess that the Minister was hoping that was not the case, but clause 60(8) returns to it, when it states:
“In this section…‘driver’ has the meaning given by section 43A(5)”
I want to say a few things about the clause. It has been introduced to plug the operational gap that we talked about with respect to clause 58, which repeals sections 44 to 47 of the Terrorism Act 2000. Can the Minister explain the operational gap that clause 60 seeks to fill? What evidence have the Government used to determine that this is the most appropriate way of plugging the operational gap that was laid out for us by the counter-terrorism review, which the JCHR has accepted? The Committee deserves a little more detail from the Minister, now that we are on an even keel again, about what “operational gap” means, about how the clause seeks to plug it and about the relevant evidence.
Can the Minister also tell us how an officer will decide to authorise stop and search under these powers without reasonable suspicion in a specific location? Is the process exactly the same as before, namely that the officer decides that it is necessary and applies to the Home Office for it to be authorised?
The clause introduces schedule 5, which lays out some of the detail about how the power operates. Why have the Government decided on 14 days for an authorisation of stop and search, not 28 days? How have they arrived at 14 days and not 12 days, 16 days or 10 days as a sufficient time scale? If a virtually automatic renewal can be granted after 14 days, 28 days might as well have been granted in the first place. A 14-day authorisation looks good, but it does not mean anything if it is just reapplied or rubber-stamped through to make it 28 days. If at the end of 14 days someone decides that they want the authorisation to be renewed, does that renewal have to be on the basis of fresh, new evidence or can it be on the basis of the information for which the authorisation was originally granted? In other words, does the renewal have to be granted on the basis of completely fresh or new information?
How many times can the authorisation be renewed? Will that be laid out in guidance, or will it be decided on the basis of the evidence at the time? Is there some idea about how many times a renewal might be granted?
We are dancing on the head of a pin, but the Government have made much of the fact that in order to abide by the human rights judgment, it was important to restrict the geographical area under which the power in clause 60 can be used. What do we mean by restricted geographical area? What does geographical area mean? It is important that we restrict it because otherwise we will not conform to human rights legislation, and it was granted on the basis of too big an area before. Everybody accepts now that section 44, granted for the whole of the Metropolitan police area, was perhaps not appropriate, but that has changed thanks to the police and the previous Government. What is an appropriate geographical area? If that was not appropriate, would a division be appropriate? Would a neighbourhood be appropriate? Or is it defined not by the size of the area but by the perceived threat? What sort of criteria and judgment will there be of how big the geographical area is? There is no real definition of that, and it would be helpful if the Minister would clarify it for us.
Should the authorisations for the clause 60 powers be made public? The argument is: if we make them public, what is the point of having them because people will avoid the area? However, lots of people say that if there is a perceived threat in the area, it helps if they know about it. If the authorisations should not be made public, what is the Government’s thinking on that? Is it simply regarded as unnecessary, not helpful or whatever?
Can the Minister also tell us whether the decision will simply continue to be a policing and Home Office one? Does he see a role for any judicial authorisation with respect to the use of stop-and-search powers? We have seen the huge disquiet there was under the previous use and some of the issues that have arisen. Does the Minister think that some sort of judicial authority will be involved in the authorisation of stop and search—not a High Court judge but perhaps a magistrate?
If the Minister is concerned about compliance with human rights legislation, the judgment of the European Court of Human Rights and the need to retain public confidence in something that is intrusive and, at times, controversial, should there be a judicial process? Even if there is no judicial process for the whole 14 days, is there a case for judicial authorisation to allow the police to take immediate action if they need to do something within the next 24 or 48 hours? Would that be appropriate?
Is the Minister convinced that these new powers, which are essentially stop and search without reasonable suspicion—albeit in a more tightly defined area—are still significant? Is the Minister confident that the powers that he and the Government have laid out are sufficiently circumscribed in their extent, and are the safeguards that we all think necessary included in the Bill? Will the Minister take us through the process referred to in clause 60? I presume the term “senior officer” means a superintendent or above because that is the case under the Terrorism Act 2000. However, I want to make sure that there will be no change in that respect and that an officer of the rank of superintendent or above can make a decision on stop and search. Is it necessary for the senior officer to reasonably suspect? The Bill states
“reasonably suspects that an act of terrorism will take place,”
but what does that mean? Does it relate to a belief that such an act will take place or does there have to be evidence that it will take place? Fairly obviously, if someone has a belief that something will happen, it is a little less tight than if someone suspects that it will. The legislation states “suspects,” but will the Minister clarify whether he actually means “reasonably believes” that such an act will take place?
As I said, many of these matters will be dealt with in the detail of the Minister’s comments. It is very easy to say that the measure will be used only when the senior officer reasonably suspects that officers should be able to stop and search without reasonable suspicion on the ground; it is very easy to say that there will be a much tighter geographical area and it is very easy to say “no longer than is absolutely necessary”. All those things are fine, but what do they actually mean in practice? We need more clarification and detail from the Minister about those aspects of the Bill. As the measure is set out at the moment, it contains very broad powers and broad definitions. However, there is not much clarity about them.
Finally, I would again like to ask the Minister what “driver” means. Under section 43, the driver of an aircraft, a hovercraft or a vessel—a captain or a pilot—may be stopped and searched not only with reasonable suspicion, but without reasonable suspicion. How will that work in practice, given that it is not just the captain or pilot who may be searched, but any member of the crew? Is the Minister saying that a liner or an aircraft may be stopped and every member of the crew searched without “reasonable suspicion”? There is a lack of clarity. The Government are trying to say the right things, and they have put the words in the Bill, but many of us in the Committee and out there need to know a little bit more about some of the definitions that the Government have used.

James Brokenshire: I hope to be able to respond to as many of the hon. Gentleman’s questions on the new provisions in clause 60 and the replacement powers of stop and search.
There is wide acceptance that the police need, and should have, some form of terrorism stop-and-search power that does not require the officer on the ground to reasonably suspect that an individual is a terrorist. That is the distinction between what we have in clause 60 and what was in clause 59. Lord Carlile, the previous statutory reviewer of terrorism legislation, indicated that, and Lord Macdonald, the reviewer of the counter-terrorism and security powers, agreed.
Clause 60 will insert new section 43B in the Terrorism Act 2000, and there are supplementary provisions in schedule 5. Together, they will replace the powers in sections 44 to 46 of the 2000 Act. For example, the hon. Gentleman asked about the level of seniority of the police officer, and that provision is contained in schedule 5. Details are provided in clause 60, but I also draw hon. Members’ attention to schedule 5, and no doubt we will debate specific issues on that.
The new powers will allow a senior police officer to authorise the stopping of vehicles and pedestrians to search for anything that may constitute evidence that a person is a terrorist or that the vehicle is being used for the purposes of terrorism. A constable in uniform may exercise the powers once authorised, even when they do not have a reasonable suspicion that such a search will result in evidence of terrorism. However, a senior police officer may make an authorisation only in restricted circumstances. An authorisation may be given only if the senior police officer reasonably suspects that an act of terrorism will take place and considers that the authorisation is necessary to prevent such an act. Furthermore, the areas or places specified in the authorisation must be no greater than is necessary and the duration of the authorisation no longer than is necessary. The threshold for granting authorisation will be far higher than previously. The power will be far more focused, and the safeguards to prevent misuse of the power will be stronger.
To return to a number of points that the hon. Gentleman made on the change to the test, which is important, he will note that the concept of “reasonable suspicion” is encapsulated in existing section 43. That concept has been brought across to the powers that we are discussing. It was interesting that the right hon. Member for Kingston upon Hull West and Hessle (Alan Johnson) said
“it does seem to me sensible to change the test for authorisation from ‘expedience’ to ‘necessity’ and to use a test of ‘reasonable suspicion’”.—[Official Report, 8 July 2010; Vol. 513, c. 541.]
We are seeking to raise the bar on what will be required in the utilisation of the approach and the process. We have sought to apply consistency with terminology that is already understood, and applied by the police in their utilisation of the existing provisions. Reasonable grounds for suspicion depend on the circumstances in each case. There must be an objective basis for the suspicion; we cannot just create one. The suspicion must be that the person is a terrorist, for example, or the vehicle is being used for the purpose of terrorism based on relevant facts, information and intelligence. “Reasonable suspicion” must rely on intelligence and information about, or behaviour by, the person or vehicle concerned. I hope that gives some clarity as to why we have arrived at that use of words and how they may be interpreted in any given situation.

Vernon Coaker: That is helpful and I agree with it. That is a higher threshold. I also agree with my right hon. Friend the Member for Kingston upon Hull West and Hessle.

James Brokenshire: I am grateful to the hon. Gentleman for coming back on that. I hope I will be able to address some of his other points as well, such as those on geographic area. As I have indicated, we want to ensure that the provisions are used appropriately. No doubt the hon. Gentleman has looked at the code of practice, which has already been published alongside the remedial order. The guidance in those notes is that the area authorised should be no wider than necessary. It looks at necessity based on the information and intelligence that is available to the police in making that decision. There has been some pressure to say that the area should be limited to 1 square kilometre. Liberty recommended that at one point. I understand that the intention is to provide certainty, but the problem is that intelligence is not an exact science. The provisions provide for a more focused and fairer power, but it would not be appropriate to restrict the power yet further. That view was supported by Lord Macdonald who provided independent oversight in the review.
The hon. Member for Gedling flagged up a point about whether we had considered some form of additional oversight by the courts through a judicial process. That comes back to our consideration of the measure. The responsibility for national security decisions resides ultimately with the Government, albeit that the courts are there to review such decisions as necessary. We concluded that the appropriate way forward was to make provision in this way, rather than having some form of extra judicial authorisation, which we decided was not appropriate in this case.
The hon. Gentleman also highlighted the limiting of the authorisations to 14 days, rather than 28 days. We are looking at authorisation being for a limited period and being as short as possible. Although we may provide for 14 days as a maximum, there are other provisions. If the Secretary of State felt that an authorisation was too long, for example, it could be restricted under a new provision in schedule 5—I apologise if I am jumping around, but I hope that it explains some of the rationale and why it is intended to be a limiting power—and it would be used to that limited extent.
We chose the 14-day period because, obviously, intelligence about terrorist attacks rarely gives an exact time and place. Restricting the maximum time limit even further would risk making the new power ineffective. That is why we fastened upon 14 days.
The hon. Gentleman also talked about the availability of information and evidence, and the approach taken to an authorisation and its duration. He raised that in relation to renewals, and so on. An authorisation should be given for no longer than necessary and should not be made for the maximum period unless it is necessary based on intelligence about a specific threat. Justification should be provided with the length of an authorisation and should set out why the intelligence supports the amount of time authorised. If an authorisation is similar to another immediately preceding it, information should be provided about why a new authorisation is justified and why the period of the initial authorisation was not sufficient.
That point is set out in the code of practice that was published alongside the remedial order and gives further clarification and guidance. New authorisations are not intended to provide some sort of rolling authorisation under
“section 47A of…the Terrorism Act 2000. A new authorisation… may be given if the intelligence which informed the initial authorisation has been subject to fresh assessment and the officer giving the authorisation is satisfied that the test for authorisation is still met on the basis of that assessment. Where a successive authorisation is given, it may be given before the expiry of the existing authorisation…but that existing authorisation should be cancelled.”
I hope that the hon. Gentleman and the Committee find that informative on the manner in which the power will be applied.
On making the authorisations public, as the hon. Gentleman knows, we are seeking to take an approach similar to that taken in section 44 of the Terrorism Act. It would not be sensible to publicise the existence of no-suspicion authorisations beforehand as it may give some indication of the thinking of the police or the security services on a terrorist threat. It may be of assistance to terrorists and those who seek to prey and cause harm to know what the police may be thinking about operationally and what intelligence the police may have on particular issues. It would not be sensible, therefore, to make such information public in that way. It could prove more harmful than beneficial.
On authorisation to search vehicles, in principle anyone could be searched without reasonable suspicion if a vehicle was stopped. The definition of a vehicle is the same as in the Terrorism Act. It is an exceptional power, but unlike the section 44 powers, it has much stronger safeguards to ensure that it is not misused by the police. We have sought to adopt the existing terminology in the Terrorism Act, which was drawn up under the previous Government. We are not trying to create new definitions. The language follows the established precedent.

Vernon Coaker: I know we will have to carry on this discussion later this afternoon, but will the Minister explain how the provision will affect subsection (5) of proposed new section 43A of the Terrorism Act, which addresses the drivers of planes and boats, and so on?

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Four o’clock.